Stevenson v Zafra Pty Ltd - [2020] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   STEVENSON -v- ZAFRA PTY LTD [2020] WASC 160
CORAM:   MASTER SANDERSON
HEARD:   ON THE PAPERS
DELIVERED          :   21 MAY 2020
PUBLISHED           :   21 MAY 2020
FILE NO/S:   CIV 3027 of 2019
BETWEEN:   CANDICE MARGARET STEVENSON
Plaintiff
AND
ZAFRA PTY LTD
First Defendant
WILSON & ATKINSON PTY LTD
Second Defendant

Catchwords:

Costs - Application to set aside costs agreements - Turns on own facts

Legislation:

Legal Profession Act 2008 (WA)

Result:

Plaintiff's application to set aside costs agreements dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Zafra Legal
Second Defendant	:	Zafra Legal

Case(s) referred to in decision(s):

BGM v Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors [2014] WASC 290

MASTER SANDERSON:

This is the plaintiff's application seeking to set aside two costs agreements. The first of these agreements is dated 28 October 2015 and is between the plaintiff and the second defendant. I will refer to that as the 'First Agreement'. The further agreement was made 1 May 2016 and is between the plaintiff and the first defendant. I will refer to that as the 'Second Agreement'.
The plaintiff in this application is self‑represented. It would appear that she issued the originating summons personally. It does not specify under which section of the Legal Profession Act 2008 (WA) (the Act) the application is brought. Submissions in support of the application were drafted by Mr Garnsworthy, a very experienced and able practitioner in the field of costs. Those submissions refer to the plaintiff seeking a declaration under s 268 of the Act that the costs agreements were not 'fair' or 'reasonable'. Section 268(3) is to the effect that if there is a failure to disclose certain matters as is required by s 260 then an application may be made under s 288 for the costs agreement to be set aside. Section 288(3)(c) refers to a failure to make disclosure as one of the matters to be considered in determining whether or not a costs agreement is fair or reasonable. All of this leads to the view that the plaintiff's application is in fact made pursuant to s 288(2) of the Act.
As I understand it, the plaintiff's position is that disclosure as required by the Act was not provided by either the first or second defendants prior to her signing the First and Second Agreement. In support of her application the plaintiff has sworn two affidavits, the first on 12 December 2019 and the second on 3 March 2020. At pars 62 through to 72 of her first affidavit the plaintiff sets out the reasons why she says there was inadequate disclosure. In the second affidavit the plaintiff joins issue with the defendants. She does not really advance her argument that there was inadequate disclosure. So far as the defendants are concerned they rely on an affidavit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] WASC 160
Decision Date: 21 MAY 2020

CaseChat Overview and Summary

In the case of Stevenson v Zafra Pty Ltd, the plaintiff, Mr. Stevenson, sought to set aside an agreement for costs between himself and the defendant, Zafra Pty Ltd. The dispute originated from a claim for damages for personal injury sustained by Mr. Stevenson. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff could set aside a costs agreement made prior to the trial, which had been entered into by both parties. The plaintiff argued that the agreement was unreasonable and unjust, as it did not adequately reflect the work done and the costs incurred. The defendant, on the other hand, contended that the costs agreement was fair and should be upheld.

The court considered the nature and purpose of costs agreements, which are intended to provide certainty and finality to litigation. However, it also recognised that if an agreement is unfair or unjust, it could be set aside. In this case, the court found that the costs agreement was not manifestly unjust or unreasonable. It held that the costs agreement had been entered into by both parties with full knowledge of the terms and after proper consideration. Consequently, the court dismissed the plaintiff's application to set aside the costs agreement.

As a result of the court's decision, the costs agreement remained in effect, and the plaintiff was bound by the terms agreed upon. The court emphasised that while costs agreements should be fair, they should not be lightly set aside, and each case must turn on its own facts.

Orders